Fourth DUI in Colorado

Updated

A fourth-time drunk or drugged driving offense is a class 4 felony in Colorado. It makes no difference if the three prior convictions occurred long ago or in other states. And it does not matter if nobody got hurt. The statute 42-4-1301 C.R.S. states:

Driving under the influence [or with ability impaired] ... is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI;  vehicular homicide (18-3-106 C.R.S);  vehicular assault (18-3-205 C.R.S);  or any combination thereof.

Penalties

A DUI-4th carries 2 to 6 years in Colorado State Prison. But the judge may grant probation with 3 months in jail.

In addition, defendants face a two-year license suspension. But the Colorado DMV may reinstate licenses after one month. Defendants would just need to drive with an ignition interlock device (IID). This is a breathalyzer that prevents a car from starting if it detects alcohol.

Defenses

It may be possible to get DUI-fourth charges reduced or dismissed. Typical defenses include:

  1. The breath- or blood tests were compromised;
  2. The police committed misconduct; or
  3. The defendant had a condition that caused inaccurately high blood alcohol content (BAC) results

In this article, our Colorado criminal defense lawyers will address:

Also see our article on Colorado DUIs for out-of-state drivers.

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A fourth DUI is an automatic felony in Colorado.

1. What are the penalties for a fourth DUI in Colorado?

As a class 4 felony, a DUI-4th carries:

  • 2 to 6 years in prison (with 3 years parole); and/or
  • $2,000 to $500,000 in fines

However, the sentencing range becomes 4 to 12 years if there are "extraordinary aggravating circumstances." Examples are if the defendant at the time of the fourth DUI was on parole, probation, or bond for another felony.

When deciding whether to impose prison time, the court will consider:

  • The defendant's willingness to participate in drug or alcohol abuse rehabilitation; and
  • Whether alternative penalties may be successful and would not pose an unacceptable public safety risk

If the judge grants probation, the defendant must complete:

  • 90 to 180 days in jail or 120 days to 2 years in jail through an alternative-sentencing program;
  • 48 to 120 hours of community service; and
  • A Level II Alcohol and Drug Education and Treatment Program1

2. Is a fourth DUI a felony?

Yes. If a person has three prior DUI-related convictions, the next drunk/drugged driving incident will be prosecuted as a felony DUI in Colorado.2

3. What counts as prior DUIs?

Any drunk or drugged driving conviction from a defendant's past counts as a prior. It is irrelevant how long ago they occurred. There is no "washout" period.

Any of the following five crimes counts as a prior:

  1. DUI,
  2. DUI per se,
  3. DWAI,
  4. vehicular assault, or
  5. vehicular homicide

It also makes no difference if the prior DUIs occurred in Colorado or other states. And if they did occur in other states, they still count as priors even if they had other names such as DWI or OUI.

However, juvenile DUI offenses typically do not qualify as prior convictions. The only exception is if there is still a pending deferred judgment.3

4. Will my license be suspended?

A fourth-time DUI conviction carries a two-year license suspension. But defendants 21 and older may resume driving in as little as one month if they:

  • Submit a license reinstatement application and pay the reinstatement fee ($95);
  • Drive with an IID;
  • Secure SR-22 insurance (which will last for three years); and
  • Take a Level II Alcohol and Drug Education and Treatment Program

Defendants under 21 would need to wait a year before requesting a license reinstatement.4

5. Can I fight the license suspension?

Yes. DUI defendants can request a DMV hearing. These are like mini-trials. But the sole issue is whether the defendant can keep his/her license.

DMV hearings are separate from the DUI criminal case. But the defendant's criminal defense attorney can also appear at the DMV hearing. And these hearings serve as valuable "dry runs" for the criminal case.

6. What are common defenses?

How best to combat DUI charges turns on the specific facts and available evidence. Ten possible ways to fight drunk/drugged driving allegations are:

  1. The police had no probable cause to suspect DUI;
  2. The police did not administer the field sobriety tests correctly;
  3. The breath- and blood-testing equipment were not in working order;
  4. The breath- and blood samples were contaminated;
  5. The people operating the breath- and blood-testing equipment let their certifications lapse;
  6. The defendant had a medical condition - such as GERD - that caused high BAC results;
  7. The defendant had dental work - such as a bridge - that caused high BAC results;
  8. The police committed misconduct, such as coercing a confession;
  9. The defendant did not begin drinking until after he/she stopped driving;
  10. The defendant's BAC was legal while he/she was driving. But it increased when the chemical test was administered later on. This is called rising blood alcohol.

A partial defense to DUI-4th charges is that the defendant did not have three prior DUIs. Perhaps a past DUI charge got reduced to a lesser charge like reckless driving (42-4-1401 C.R.S.), preventing it from counting as a prior. Or perhaps court records are too ambiguous to prove that the defendant has three priors.

If the defendant can cast doubt on just one prior DUI, then the charge could be reduced to a DUI-third. This is only a misdemeanor.

7. Can the record be sealed?

DUI-4th convictions can never be sealed in Colorado. They remain on defendants' records forever and show up on background checks. That is why it is so important to fight to get the charges reduced or dismissed.

receptionists
Call our Denver criminal defense attorneys. 303-222-0330. We offer free consultations.

Call us for help...

Facing a DUI charge in Colorado? Call our Denver criminal defense attorneys. We may be able to get the charges lessened or dropped without a trial.

We can be reached at 303-222-0330. Or fill out the form on this page. All consultations are free.

In California? Learn about DUI-fourths in California.

In Nevada? Learn about DUI-fourths in Nevada.


Legal References

  1. 42-4-1301 C.R.S.; Jesse Paul, "Law requiring incarceration for Colorado felony DUI offenders goes into effect Wednesday", Denver Post (April 7, 2017).
  2. Same.
  3. Same.
  4. 42-2-132 C.R.S.; 42-7-406 C.R.S.; 42-2-126 C.R.S.

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